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Judgment
Honourable Mr. Justice M. Venugopal
This petition coming on for hearing upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. V. Haribabu, Advocate for the petitioner and of Mr. S. Manohar, Advocate for the 1st Respondent, the court made the following order:
The Petitioner/Appellant has filed this miscellaneous petition praying for issuance of an order by this Court to condone the delay of 24 days in filing the C.M.A. Sr. No. 56856 of 2009.
According to the learned counsel for the Petitioner/Appellant, the order in O.A. No. 4 of 2007 was passed by the Railway Claims Tribunal, Chennai Bench, on 11.02.2009 and that the certified copy of the order was dalivered on 17.02.2009.
It is the further stand of the Petitioner/Appellant that the Petitioner/Appellant filed a Review Petition seeking review of the order passed by the Tribunal to mention the name of Railways learned counsel and the same was ordered in Review Application No. 8 of 2009 on 24.03.2009 and the said order was delivered on 28.04.2009.
The learned counsel for the Petitioner/Appellant submits that with the legal opinion of the earlier counsel for the Railways, the file was sent to the Chief Claims Officer on 28.05.2009 for passing necessary orders and again on 12.06.2009, the Presiding Officer, Railway Claims Tribunal, sent the same to the Chief Claims Officer. The Chief Claims Officer passed an order to prefer an appeal and subsequently, a Railway Advocate was nominated and the papers ware sent to the Railway Lawyer on 22.06.2009 for filing an appeal. Subsequently, the C.M.A. was prepared and after complying with the Administrative Exigency, the C.M.A. has been filed before this Court with the delay of 24 days.
The contention of the learned counsel for the Petitioner/Appellant is that the delay of 24 days in preferring the C.M.A. as occasioned due to the elaborate administrative procedures being complied with by the petitioner and the same is neither wilful nor wanton.
In response, the learned counsel for the First Respondent/Claimant contends that the C.M.P. No. 1 of 2009 filed by the petitioner/appellant u/s 23(3) of the Railway Claims Tribunal Act, read with Section 5 of the Limitation Act is not maintainable either in law or on facts.
Expatiating his submission, the learned counsel for the First Respondent/Claimant contends that as per Section 23(3) of the Railway Claims Tribunal Act, 1987, an appeal against the order passed by the Tribunal shall be made within 90 days of the order and that there is no provision under the Act, to prefer an appeal with a delay and also there is no specific provision made in the Railway Claims Tribunal Act, to avail and apply the provisions of the Limitation Act.
Proceeding further, the learned counsel for the First Respondent/Claimant projects a plea that as per Section 17(2) of the Railway Claims Tribunal Act, an application may be entertained after the period specified in Sub-Section (1) of Section 17 of the Act, if the applicant satisfies the Tribunal that he has sufficient cause for not making the application within such period, whereas no specific provision has been made in regard to the appeals u/s 23 of the Act and therefore, the C.M.P. No. 1 of 2009 viz., condone delay petition is perse not maintainable before this Court.
In the counter filed by the First Respondent/Claimant, it is also avered that the petitioner/appellant /Railways has not explained each and every days delay and there is no valid ground for the petitioner to seek condonation of delay.
The learned counsel for the Petitioner/Appellant cites the decision of Hon''ble Supreme Court in Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, , at Page 6, wherein it is observed as follows:
The Kerala Rent Act is a special Act or a local law. It prescribes for appeal u/s 18 a period of limitation which is different from the period prescribed by the Schedule, as the Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority u/s 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. A situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29 (2) would get satisfied. Thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act aross by the omission to provide for limitation to a particular proceeding under the Limitation Act.
He also relies on the decision in M/S. Hulash Chand Choraria and others v. Union of India AIR 2003 Gauhati 151, at Page 153, wherein at paragraphs-6 and 7, it is observed thus:
A plain reading of Section 17 of R.C.T. Act will make it clear that it is a self-contained law and there is nothing to show that there should be a separata application asking for condonation of delay. Only requirement of law given by Section 17(2) is to show ''sufficient cause'' to the satisfaction of the Tribunal (RCT) for not making the application within the statutory period of three years. So, the order of the learned RCT to that effect was not correct. Merit apart the explanation given in petition explaining the delay should have been considered and then either be allowed or rejected. The provision is not to be confused as has been rightly argued by appellant, with Section 5 of Limitation Act or with Order 41, Rule 3-A of CPC. But then, after going through these statements I find that there is no definite assertion of facts; and the grounds shown to explain the delay are vague and baseless.
Be that as it may, this appeal can be decided on merit only when prayer for condonation of delay of 59 days in presenting the appeal is allowed. Admittedly, from the contents of the petition for condonation the petitioner/appellant applied for copy of the impugned order of the Tribunal on 05.03.1997 and copy was supplied on 15.12.1998. It is seen one Rajesh Agarwals presented the original claim application for and on behalf of Hulash Chand Choraria and Brothers, Silchar. But the present application for condonation was filed under signature of the learned lawyer (Sri. H.P. Barman) and affidavit to that effect was sworn by one Mukesh Jalan of Athgaon, Guwahati claiming to be son of Chand Jalan of Athgaon; Guwahati. There is nothing to show the connection of this person with the original applicant Rajesh Agarwal of Silchar. Moreover, the illness of Chand Jalan has nothing to do with the appeal to be presented in time by Rajesh Agarwal. Therefore, due to the insufficiency of materials, the delay in presenting this appeal also cannot be condoned. The appellant was all along careless and callous to claim relief. The appeal is barred by time and is dismissed as not maintainable also upholding the decision of RCT on merit.
Per contra, the learned counsel for the First Respondent/Claimant seeks in aid of the decision of Hon''ble Supreme Court in Commissioner of Customs and Central Excise v. Hongo India Private Limited and another 2009 (4) CTC 390 391, wherein it is laid down as follows:
Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29 (2) would be attracted what we have to determine is whether the provisions of this Section are expressly excluded in the case of Reference to High Court. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law hare in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded,- then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonethless be open to the Court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of Reference Application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed u/s 35-H(1) to make a reference to High Court is absolute and unextendable by Court u/s 5 of the Limitation Act. It is well settled law that it is the duty of the Court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.
At this juncture, this Court worth recalls the decision of Hon''ble Supreme Court in Sakuru Vs. Tanaji, , wherein it is held that,
Where appeal is before a body or an authority other than a ''Court'', special statute under which appeal is filed must authorise such body or authority to apply Section 5 of the Limitation Act, while dealing with an application for condonation of delay in filing the appeal.
This Court aptly points out the decision of Hon''ble Supreme Court in Smt. Sushila Devi Vs. Ramanandan Prasad and Others, at Page 362, wherein it is held that Section 5 of the Limitation Act does not apply, if the authority is not a "Court." etc.
In Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, , the Hon''ble Supreme Court as observed as follows:
(ii) Article 137 only contemplates applications to courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various articles are applications filed in a Court. Further Section 4 of the Limitation. Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is "when the Court is closed". Again u/s 5 it is only a Court which is enabled to admit an application after the prescribed period has expired if the Court is satisfied that the applicant had sufficient cause for not preferring the applications. The scheme of the Indian Limitation Act, 1963, is that it only deals with applications to Courts and that the Labour Court is not a Court within the Indian Limitation Act, 1963.
In yet another decision of Hon''ble Supreme Court, Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., , it is among other things held that
There is no provision in the new Limitation Act which would justify holding that the changes in definition were intended to make the Limitation Act applicable to proceedings before bodies other than Courts. Article 137 of the Schedule u/s 33(c) (2) of the Act.
In K. Venkaiah and Others Vs. K. Venkateswara Rao and Another, , it is inter-alia held as follows:
Section 93 of the Hyderabad Tenancy Act makes only the provisions of the Limitation Act, relating to the computation of the period of limitation (i.e. Sections 12 to 24) applicable to the said proceedings, and not the other provisions. Therefore, Section 5 of the Limitation Act does not apply to proceedings under the Act and the authorities under the Act have no power to extend the period of limitation prescribed for filing an appeal or revision before the authorities under the Act.
But, in so far as the High Court is concerned, it-stands on a different footing from the authorities under the Act, because it is indisputably a Civil Court. If so, the Limitation Act, including Section 5 thereof, applies and the High Court does have the undoubted power to extend the period of limitation prescribed by the special enactment and entertain a revision filed beyond the prescribed period. 1975 (2) APLJ 66, referred. Case law discussed.
On a careful consideration of respective contentions and in view of the fact that Section 28 of the Railway Claims Tribunal Act, 1987, which enjoins that the "provisions of this Act shall have effect not withstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act" and also bearing in mind a very essential fact that Section 23 of the Railway Claims Act, 1987, relating to appeals does not provide for condonation of delay in preferring the appeals, this Court is of the considered view that the limitation of 90 days for filing of an appeal as per Section 23(3) of the Act cannot be extended by invoking the provisions of Section 5 of the Limitation Act and viewed in that perspective, the present Miscellaneous Petition fails.
In the result, the Civil Miscellaneous Petition is dismissed, leaving the parties to bear their own costs.